Ordered that the judgment is affirmed, with costs.
The evidence supports the finding of the Surrogate's Court that the decedent's acts were voluntary and not the result of fraud or undue influence. The transfer of the East River Savings Bank account to his sister was not illusory in nature (see, Krause v Krause, 285 N.Y. 27; Newman v Dore, 275 N.Y. 371). Even if the decedent violated the pendente lite order issued in a divorce action by transferring the bank account and changing the beneficiaries on his IRA accounts, that does not provide a basis for returning those assets to the estate. When he died, the matrimonial action abated and the appellant cannot obtain equitable distribution of marital assets in this proceeding (see, Sperber v Schwartz, 139 A.D.2d 640). The Surrogate's Court properly determined that the petition could not be deemed a notice of election pursuant to EPTL 5-1.1 (e) and that the appellant's request for an extension of time to exercise her right of election was untimely (see, Matter of Collins, 12 A.D.2d 307; Matter of Brookes, 9 A.D.2d 927, affd 9 N.Y.2d 840). Miller, J.P., Lawrence, Altman and Krausman, JJ., concur.